The Crisis Blog

Oz the Great and Powerful, also known as the NCAA, is perilously close to resembling the Wicked Witch of the West after a rain storm, melting into a puddle of irrelevance. The once feared sports authority is about to be neutered by a scenario of its own making.

This is known as being hoisted by one’s own petard, a phrase first coined by Shakespeare to describe a plan designed to cause harm or mayhem ultimately backfiring on those who conceived of it in the first place. And it couldn’t happen to a more deserving gang of holier-than-thou miscreants, starting with chief brass-knuckled thug, NCAA head Mark Emmert.

For those late to the party, the NCAA, in my previously published view, grossly overstepped its once unassailable authority in 2012 when it leveled on Penn State the most draconian sanctions in the sports authority’s 108-year history, as punishment for actions that were out of its jurisdiction. Whatever you may think Penn State was or was not guilty of in the Jerry Sandusky child molestation scandal, it was not an NCAA infraction. The actions of convicted child molester Sandusky, a former assistant football coach under head coach Joe Paterno, were criminal and were properly handled by law enforcement agencies. Toward that end, Sandusky was convicted of his heinous crimes and is now serving a prison sentence of more than 30 years. Given that he is now 70 years old, this is tantamount to a death sentence.

By important comparisons, consider Duke University. In 2006, some members of that school’s lacrosse team were accused of repeatedly raping an exotic dancer who had been hired to perform at a private party organized by some of the team’s members. The dancer was black, the players all white. The initial reports, fueled exclusively by the dancer’s own statements, were so egregious that the team’s coach was fired (even though he was not at the party and it was not an official team get-together) and the entire lacrosse program – along with the scholarships that went with it – were cancelled by the school without any investigation. Athletes were charged with various criminal acts and were heading to trial.

Those accusations directly involved alleged criminal actions by student athletes. Nevertheless, the NCAA rightly chose not to get involved because it was a criminal matter and not in their purview. And this was well before the dancer recanted her testimony completely. Looking for a fat payday, and coerced by local District Attorney Mike Nifong in a tough re-election campaign, she had made up the whole thing. Nifong was later disbarred.

Then, in 2010, Yeardley Love, a University of Virginia student-athlete and senior at the school, was murdered in her apartment. Fellow UVA student-athlete George Wesley Huguely V was tried and convicted of strangling his girlfriend in her own bed. Both were members of their respective lacrosse teams.

The NCAA, recognizing this as a criminal matter, rightly chose not to get involved. Huguely is behind bars.

At Penn State, Sandusky was accused of sexually molesting children, on campus and off, over a period of years. This was a criminal matter. And yet, the NCAA, led by spotlight-seeking head Mark Emmert, decided to get involved. Why? Why was this criminal matter different than the other criminal matters just cited?

Several reasons, in my opinion. First, considering that football icon Joe Paterno’s name was being bandied about by a frenzied and out of control media mob and the Penn State board was offering him up as a slab of sacrificial meat, this promised to be the highest profile sports crisis in the country since the Black Sox scandal of 1919. Second, no less a personage than retired FBI director Louis Freeh was retained to conduct an investigation. The Freeh Report, which has since been found to be riddled with numerous inaccuracies, missing gaps (e.g., the key actors refused to be interviewed, leaving the report incomplete by any reasonable standard), and implausible connection of certain dots, was nevertheless accepted “in full” by the deer-in-the-headlights board of trustees. Freeh used the phrase “institutional failure,” for which there was no concrete evidence, but was the red flag that got the NCAA involved.

But here’s the rub: Getting “involved” is one thing; Mark Emmert decided to completely circumvent the NCAA’s own by-laws and bypass its well-established and well-practiced committee on infractions when it imposed those severe sanctions, and without any independent investigation.

And this is the petard by which the NCAA is now being hoisted.

Through the lens of objective legal analysis, and with the passage of some time, it has become clear that there was no institutional failure at the school. In fact, the NCAA recently came out with a list of actions schools should take in such situations, and it was essentially the very steps Penn State had taken in the Sandusky case.

Even the state’s lead prosecutor in the investigation said there was no evidence that Paterno ever participated in any alleged cover up of Sandusky’s crimes. Both the NCAA and the Penn State board of trustees were complicit in what has accurately been called a rush to injustice.

Journalist William Cohan, in his book The Price of Silence: TheDuke Lacrosse Scandal, the Power of the Elite, and the Corruption of Our Great Universities, quotes Duke University president Richard Brodhead, who in 2007 said, “When I think back through the whole complex history of this episode, the scariest thing to me is that actual human lives were at the mercy of so much instant moral certainty, before the facts had been established. If there’s one lesson the world should take from the Duke lacrosse case, it’s the danger of prejudgment and our need to defend against it at every turn.”

Sage advice for Penn State and the NCAA.

In my recent book, which contains a full analysis of the Penn State crisis and the blunders of the board and the NCAA, I wrote: “It (sidestepping its own rules) was a crisis communications decision that the supercilious NCAA may one day rue. It inadvertently crossed a Rubicon by taking what it viewed as an expedient shortcut, and in effect compromised the integrity of its own future investigative authority. Others have claimed this NCAA bitch-slapping of Penn State was a way for Emmert to bolster his own persona.”

That day of reckoning is now here.

In handing down the sanctions, the NCAA forced Penn State to sign a consent decree, which essentially says if the school ever challenged the sanctions it received or the sports authority’s power to impose them, then the NCAA will inflict the “death penalty” and cancel football completely at Penn State for a period of some unspecified years.

Legal experts have looked at this consent decree and determined that it is illegal. But since the university’s hands are tied, some “outsiders” (such as the Paterno family, certain state legislators and even some new members of the board) have sued to get the decree overturned. In several initial rulings where the NCAA sought to have the case thrown out for lack of standing, the court not only ruled against the NCAA but it forced Penn State to become a party to the actions.

This then created the untenable – and ludicrous – position of having the school effectively arguing in court that they want the sanctions to remain.

Thus, the NCAA and Penn State filed a motion stating that since the school had already agreed to a $60 million fine and the other sanctions, any actions by parties to reverse the sanctions were moot and should be dismissed. But last week, Pennsylvania Commonwealth Court Judge Anne Covey ruled that the NCAA was trying “to usurp the court’s authority,” and she refused to dismiss the action. Judge Covey is determined to hear arguments on the case and will rule whether the NCAA even has the authority to impose such sanctions.

The last thing the NCAA wants it to have its authority overruled in a court of law, which would weaken it forever; but that looks like it might happen. And, if it does, the once-feared NCAA will see that it is not the great and powerful dictator it has been. It may turn out to be nothing more than a switchblade-wielding goon in a dark alley, ruling for years purely by intimidation and not by legalities.

The NCAA has suffered other unfavorable court decisions in this case, too. One of its original sanctions called for the university to spend $60 million nationwide on programs highlighting and addressing sexual molestation of children. But a handful of legislators said the school could not agree to spend such funds out of state, and the courts agreed. The NCAA fought this vigorously, and lost.

Another end run the NCAA tried was to recently roll back almost all of the sanctions (i.e., the ban on bowl games was lifted effective immediately, two years ahead of schedule; all scholarships were reinstated two years ahead of schedule; etc.) Its rationale was that if the sanctions were erased the case would evaporate. Wrong.

The action last Friday was confirmation that this case will be heard, and if it is and the NCAA loses, it also will lose the clout it has always wielded over every school in the country. Plus, other schools will see that they can appeal any NCAA ruling in a court of law. And this may lead to a much-needed overhaul of the entire NCAA, beginning with Emmert’s ouster.

There are several reasons why the plaintiffs are determined to go forward. First, it is important in their minds to prove that the sanctions were not warranted in the first place. Some want to try to eradicate the erroneous stigma the school still feels as a place that for more than a decade knowingly protected a child molester. Also, the Paterno family wants to restore Joe’s legacy, which was so badly tarnished by the board of trustees and the NCAA.

One of the most controversial sanctions, which for now is still in place, was to vacate 111 of Joe Paterno’s victories on the gridiron. This sanction is, and always has been, absurd, and I said so in my recent book, Crisis Communications: The Definitive Guide to Managing the Message. The only people who this punitive act punishes are scores of innocent football players whose achievements for more than a decade have been erased from record books.

When I wrote about this in my book, I cited the analogy of baseball great Pete Rose, who was kicked out of Major League Baseball for life for betting on games, some of which he was involved in at the time. And yet, his achievement as the all-time leader in base hits is still honored.

“Explain history,” I said; “don’t rewrite it.”

I cannot predict what will happen in court, but if the plaintiffs prevail, the only relevant question will be: Is this the end of the NCAA as we know it?